'Legal Aid Must Be Effective; Prosecutors Must Ensure Fair Trial' : Supreme Court Issues Guidelines To Legal Aid Lawyers, Prosecutors

The Supreme Court today issued a slew of directions regarding the role of the Public Prosecutor and the appointment of Legal Aid Counsels in upholding procedural fairness and the fundamental rights of the accused in criminal trials. The Court said that the Public Prosecutor must assist the Trial Court in recording the accused's statement under Section 313 of the CrPC, ensuring all incriminating material circumstances are presented to the accused. While ensuring offenders are punished, the Prosecutor must also prevent infirmities in the trial that could prejudice the accused, the court added.The bench comprising Justices Abhay S Oka, Ahsanuddin Amanullah, and AG Masih issued the following directions while overturning the conviction of a person accused of raping and murdering a minor girl who was not afforded proper legal aid during the trial and was not provided incriminating evidence during recording his statements under Section 313 Cr.P.C.“a. It is the duty of the Court to ensure that proper legal aid is provided to an accused; b. When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully; c. Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused; d. It is the duty of the Public Prosecutor to assist the Trial Court in recording the statement of the accused under Section 313 of the CrPC. If the Court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the Court while the examination of the accused is being recorded. He must assist the Court in framing the questions to be put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused; e. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions f. At all material stages, including the stage of framing the charge, recording the evidence, etc., it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal aid, the Trial Court must ensure that a legal aid advocate is appointed to represent the accused; g. As held in the case of Anokhilal, in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate. Even in the cases not covered by the categories mentioned above, the accused is entitled to a legal aid advocate who has good knowledge of the law and has an experience of conducting trials on the criminal side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials; h. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed; i. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice; j. In the cases where the offences are of a very serious nature and complicated legal and factual issues are involved, the Court, instead of appointing an empanelled legal aid advocate, may appoint a senior member of the Bar who has a vast experience of conducting trials to espouse the cause of the accused so that the accused gets best possible legal assistance; k. The right of the accused to defend himself in a criminal trial is guaranteed by Article 21 of the Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21; l. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. Advocates...

'Legal Aid Must Be Effective; Prosecutors Must Ensure Fair Trial' : Supreme Court Issues Guidelines To Legal Aid Lawyers, Prosecutors

Yash Mittal

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